Ms Rebecca Woods and Mr Richard Jackson v Collie Chamber of Commerce and Industry Inc. T/A Collie CCI

[2015] FWC 6620

[2015] FWC 6620 [Note: An appeal pursuant to s.604 (C2015/8173) was lodged against this decision - refer to Full Bench decision dated 14 April 2016 [[2016] FWCFB 2367] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC Anti bullying orders s.402 and s.611 – Application for Costs Orders against Parties

Ms Rebecca Woods and Mr Richard Jackson
v
Collie Chamber of Commerce and Industry Inc. T/A Collie CCI; Mr David Churches; Mr Nic Smargiassi; Mr Marc Bernardi
(AB2015/206 and AB2015/207)

DEPUTY PRESIDENT BULL SYDNEY, 25 NOVEMBER 2015

Anti-bullying order application, matters heard together, matters discontinued, application for costs order under s.402 and s.611 against the applicants, meaning of ‘vexatiously,’ ‘without reasonable cause’ and ‘no reasonable prospect of success’, costs application dismissed.

[1] On 26 March 2015, Ms Woods and Mr Jackson made an application under s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying. The applications named David Churches, Nic Smargiassi, and Mr Marc Bernardi (the respondents) as the individuals of the alleged bullying behaviour, and the Collie Chamber of Commerce & Industry Inc. (the Chamber) as the employer. At the relevant time the respondents were members of the Chamber’s Management Committee (the committee) .

[2] A Response from the employer to an application for an order to stop bullying (F73) was received from Erik-Jan Mellegers the President of the Chamber at the time, on behalf of the employer on 7 April 2015 accepting that bullying was occurring. Mr Churches however submitted that Mr Mellegers had no authority to reply on behalf of the Chamber.

[3] Ms Woods is employed by the Chamber as the Administration Manager. In respect of Ms Woods’ application, she alleged that the bullying she had been subject to included being intimidated and made to feel uncomfortable by the respondents.

[4] Mr Jackson is employed by the Chamber as the Chief Executive Officer on a part time basis working 3 days a week. In respect of Mr Jackson’s application he alleged that he had been bullied by being threatened and shouted at by the respondents.

[5] The applications were the subject of a telephone conference before Commissioner Hampton on 15 and 30 April 2015, the matters were not resolved. The applications were subsequently referred to me for determination. Directions were issued on 6 May 2015 for the parties to file submissions in respect of the applications and listed for hearing on 20 August 2015 at the Collie Court House in Western Australia.

[6] It was agreed that both applications be heard together as the allegations made and the factual matrix accompanying the allegations were analogous.

[7] The applicants represented themselves.

[8] Ms Vinciullo, a solicitor sought leave to represent the respondents and the Chamber. Mr Jackson opposed Ms Vinciullo’s appearance on behalf of the Chamberon the basis that the she was not properly appointed to act on the Chamber’s behalf. 1

[9] Ms Vinciullo filed a Notice of Representative commencing to act (F53) on 19 August 2015, and submitted at the 20 August 2015 hearing that her appearance would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (s.596(2)(a)), and that the respondents intended to run a jurisdictional issue. 2 It was put on the basis of the jurisdictional argument the application had no reasonable prospect of success and the applications should be dismissed.3

[10] The jurisdictional objection had not previously been raised in the responses filed or the written submissions of the respondents.

[11] The jurisdictional objection raised by the respondents was put on the basis that the Chamber is not a constitutionally covered corporation or trading corporation; and therefore the Commission does not have the jurisdiction to hear the matter.

[12] Section 789FD(1) of the Act requires that a worker who alleges they have been subject to bullying must work in a “constitutionally-covered business”. A business is a constitutionally-covered business if it is a constitutional corporation. 4 The term constitutional corporation is defined in s.12 of the Act in the following terms:

“constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.”

[13] Section 51(xx) of the Australian Constitution, in effect refers to “constitutional corporations” as foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.

[14] The Commission did not hear the extent of this objection, nor were the applicants provided with notice of the jurisdictional objection prior to the hearing. 5 

Background

[15] The background to the applications is unusual in that the three individual respondents maintain they are currently committee members of the Chamber. 6 Mr Churches who was the spokesperson for the individual respondents submitted that a group, of which he is member of together with the individual respondents continue to meet as the committee of the Chamber but do not do so in the premises of the Chamber itself as they do not have access to the building, nor do they have any interaction with the employees of the Chamber. This committee was referred to as the ‘old committee’. No minutes of any meetings held by the old committee were made available to the Commission.

[16] At the hearing on 20 August 2015, the applicants submitted that at an Annual General Meeting of the Chamber held on 10 August 2015, a new committee was voted in which did not include Mr Churches, Mr Smargiassi and Mr Bernardi. On this basis the respondents are not current committee members as of 10 August 2015.

[17] The respondents submitted that the 10 August 2015, Annual General Meeting was unconstitutional, as such they remain members of the committee. Mr Churches submitted that he had taken this issue up with the Western Australian Department of Commerce which has responsibility for bodies such as the Chamber constituted under the Associations Incorporations Act 1987 (WA), no evidence of this was provided to the Commission.

[18] Section 789FF of the Act provides that the Commission may make a stop bullying order provided that there is a risk that the worker will continue to be bullied at work. The conduct complained of by the applicants resulted from actions taken by the respondents in their role as committee members of the Chamber. On the submissions of the applicants the respondents no longer occupy committee roles. Following an adjournment at the hearing, the applicants advised the Commission that they did not wish to proceed with their applications on the basis they no longer have contact with the respondents and therefore will not continue to be bullied.

Costs application

[19] On 3 September 2015, Mr Churches, on behalf of the respondents filed an application for costs under s.402 of the Fair Work Act 2009 (the Act) and additionally under s.611 of the Act with respect to costs incurred from the s.789FC applications of Ms Woods and Mr Jackson.

[20] The parties were asked whether they were content to have the costs application determined on the papers. On 30 September 2015, Mr Churches wrote to the Commission requesting the costs application proceed by way of a hearing with witness evidence.

[21] Directions were issued on 30 September 2015 directing parties to file submissions with respect to the costs order application, and the matter was listed for hearing on 13 November 2015 in Collie.

Submissions and evidence of the respondents

[22] The respondents claim that they incurred costs due to the unreasonable acts of the applicants in the conduct or continuation of the matter and seek an order for costs pursuant to s.400A of the Act. Although the application named s.402 of the Act as being one of the relevant sections of the Act to which the respondents sought costs, subsequent submissions filed by the respondents referred to s.400A of the Act.

[23] An order is also sought under s.611 of the Act on the basis that the applicants acted vexatiously or without reasonable cause, and that it should have been reasonably apparent to the applicants that their applications had no reasonable prospects of success. 7

[24] The application for costs pursued under s.400A cannot succeed as it is clear by the terms of that section that it only has application to matters that have commenced as unfair dismissal claims. 8 I have disregarded the submissions made by the respondents in respect to a costs order under s.400A of the Act.

[25] In support of their costs application, the respondents each gave evidence which in reality concentrated on why they had not engaged in the alleged bullying as opposed to why the applications were made:

● vexatiously or without reasonable cause; or
● that it should have been reasonably apparent to the applicants that the applications had no reasonable prospect of success.

[26] Also called to give evidence for the respondents were:

● Mr Darcy Buckle – a former committee member
● Mr Peter Smargiassi – Manager Collie Steel, (son of Nic Smargiassi, a respondent)
● Mr Peter Hall – a former Vice President of the Chamber

[27] The evidence given by the respondent’s witnesses did not assist the respondents in establishing that the applications of Ms Woods and Mr Jackson were vexatious, made without reasonable cause and/or that it should have been reasonably apparent to the applicants that there was no reasonable prospect of success. The witness evidence either denied that any bullying had occurred or referred to the conduct of various persons at Chamber meetings.

[28] It was submitted that the respondents’ reputations in Collie had been damaged by the applications. Mr Churches referred to an email he had subsequently received on 28 July 2015, which made a number of unkind references to his character. Mr Churches submits that the applicants, and in particular Ms Woods acted vexatiously by making her application known to the Collie community. He drew this conclusion from the reference in Ms Woods’ application at Q.2.1, where Ms Woods states that her husband and herself had received expressions of support from a number of community members in relation to her application.

[29] The respondents argue that following the making of the application, the respondents told the applicants that their applications lacked merit, but despite this, the applicants still persisted with their applications.

[30] It is submitted that Ms Woods and Mr Jackson lodged their originating applications vexatiously and without reasonable cause, and that the applicants were aware that such an application had no reasonable prospects of success.

[31] Further, the continuation of the matter by the applicants, despite the applicants ‘assertions’ 9 that the respondents are not members of the Chamber and the discontinuance of the applications demonstrates a clear inference that the applications lacked a reasonable cause.10

[32] The written submissions of the respondents did not raise issues with regard to the application being made “vexatiously”, but rather focused on “without reasonable cause” and “no reasonable prospects of success”. Mr Churches however did, through his own evidence and submissions argue that the applications were made vexatiously.

[33] At the costs hearing, Mr Churches submitted that the respondents had wanted the application to proceed at the 20 August 2015 hearing, however, this submission is in contrast to those made by their legal representative on the day asking for the matters to be dismissed.

[34] The respondents were asked by the Commission to specify the costs they were seeking as this information was not contained in the originating costs application. A final costing was provided by email from Mr Churches on 15 September 2105. A sum of $28,051.10 is claimed as costs incurred through the engagement of the legal firm K&L Gates and a further $22,900 charged at $100 per hour by Mr Churches for his preparation time on behalf of the respondents, being a total of $50,951.10 in costs sought.

[35] The question of self-represented parties being entitled to costs was traversed by Hatcher VP in Paul Hill v L E Stewart Investments Pty Ltd T/A Southern Highlands Taxis and Coaches; Laurie Stewart; Robert Carnachan; Nick Matinca 11 the Vice President stated:

“[11] The question remains as to what costs can be ordered. The word “costs” as used in s.611 and elsewhere in the Act is not defined. “Costs” is usually interpreted to mean fees for professional legal services and other permissible out-of-pocket expenses actually incurred in the conduct of litigation. It does not include the time spent by a litigant in person in preparing for or conducting his or her case. 12 The respondents were self-represented; they cannot therefore be compensated for the time spent preparing for or attending the hearing as parties.”

[36] However, at paragraph 12 of that decision, it was held that self-represented parties may claim witness fees where they give evidence in a matter.

[37] A copy of the K&L Gates invoices was provided to the Commission. The invoices were made out to the respondents’ various businesses which arose from a costs agreement with K&L Gates, a copy of which was provided to the Commission on 17 November 2015.

Applicants’ submissions and evidence

[38] Ms Woods and Mr Jackson gave evidence as to why the costs application should not be granted.

[39] Ms Woods submits that she was well within her rights to submit her s.789FC application as she had experienced the alleged repeated bullying behaviour which was detailed in her application.

[40] Ms Woods further submits that in attendance at the monthly executive meetings, the bullying behaviour was becoming the ‘norm’. The alleged behaviour was reported to the then President and CEO of the Chamber with meetings held in respect to the alleged behaviour. Further the President and the Executive had tried to resolve the issues unsuccessfully as the respondents did not attend scheduled mediation meetings. Ms Woods submits that based on the bullying behaviour she experienced from the respondents she had reasonable cause to commence the proceedings against the respondents.

[41] Mr Jackson also submits that he had reasonable cause to instigate his application, in that the respondents had engaged in intimidating tactics against Ms Woods and himself. Mr Jackson further submits that because the behaviour had occurred over a considerable period of time, he was of the belief that there was a “considerable chance of success” in achieving the stop bullying orders sought. 13

[42] Both applicants submit that the members held an Annual General Meeting (AGM) on 10 August 2015, 10 days prior to the hearing, and the next Executive meeting held with the ‘newly elected’ committee was not until 19 August 2015, a day before the hearing. Ms Woods states that the minutes of the AGM were not received until a week before the hearing.

[43] Mr Jackson also submits that until the day of the hearing, the applicants “had very strong reasons to believe that orders would be made against the respondents” 14 and that the respondents have failed to provide any evidence the applicants have behaved “vexatiously or without reasonable cause” or that it was reasonably apparent that the applications had no reasonable prospects of success”

[44] Mr Glyn Yates also gave evidence in support of the applicants. 15 Mr Yates had been a former President of the Chamber. Mr Yates attended a meeting of the committee on 18 February 2015, which addressed the complaint of Ms Woods of being bullied and harassed by of February 2015. Mr Yates’ evidence was that the meeting did not deal with the complaint in a constructive manner due to the actions of the respondents. The next day he spoke to Ms Woods who stated she was trying to avoid any contact with the respondents.

Conclusion

[45] Under s.611 of the Act, an application for costs can be made in relation to any matter under the Act provided the time frame of filing the application is within 14 days 16 after the matter has been determined by the Commission or discontinued. In this case, the applications were discontinued on 20 August 2015 and the costs application made on 3 September 2015 being within the 14 day time period.

[46] In relation to an application for costs, s.611 of the Act states:

“611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1)”

[47] As can be seen from s.611(1), the general rule is that parties will bear their own costs in proceedings before the Commission, however s.611(2) provides an exception to the general rule.

[48] The Commission may make an order for costs if satisfied that the application was made vexatiously, without reasonable cause or it was reasonably apparent that the application had no reasonable prospects of success.

[49] The power to award costs conferred by s.611 is clearly discretionary in nature. It provides where the Commission is ‘satisfied’ of certain matters, then the Commission ‘may’ make an order for costs. 17 In considering whether the Commission chooses to exercise its jurisdiction to award costs as an exception to the general rule that a party must bear their own costs in relation to a matter before the Commission, it does not necessarily follow that if the limited circumstances prescribed under s.611 apply, that the discretion will be exercised18.

[50] In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 19, the High Court observed that:

“‘Discretion’ is a notion that ‘signifies a number of different legal concepts’. In general terms, it refers to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result.’ Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment. (footnotes omitted)”

[51] In A Baker v Salva Resources Pty Ltd 20 the Full Bench made the following observations with respect to s.611(2)(b) of the Act:

“[10] The concepts within s.611(2)(b) “should have been reasonably apparent” and “had no reasonable prospect of success” have been well traversed:

• “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; 21 and



• a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless 22 or so lacking in merit or substance as to be not reasonably arguable.”23

[52] In Keep v Performance Automobiles Pty Ltd 24 a Full Bench of the Fair Work Commission stated that:

“[16] The FWC’s power to order that a person bear some or all of the costs of another person in relation to an application is only enlivened if the FWC is satisfied as to the matters set out in either s.611(2)(a) or s.611(2)(b).

[17] The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Easter Health Great Health and Wellbeing (Church). Church is authority for the following propositions:

(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.

(ii) A party cannot be said to have made an application ‘without reasonable cause’ within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful.

(iii) One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.

(iv) The test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgment, that is, ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed’.

[18] As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that ‘it should have been reasonably apparent’ to that person that their application had ‘no reasonable prospect of success’. The expression ‘should have been reasonably apparent’ in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant’s subjective belief.

[19] There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had ‘no reasonable prospects of success’. In Deane v Paper Australia Pty Ltd 25 a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996;

“unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available 26”.”

[53] A Full Bench of the Commission in Qantas Airways Limited v Mr Paul Carter 27 stated as follows:

“[20] It is clear from the terms of s.611 of the Act that the point at which the Commission must determine whether or not Qantas' application to appeal was vexatious, without reasonable cause or had no reasonable prospect of success, is when Qantas made the application to appeal.”

[54] The respondents referred to the decision of Wilcox J in Re Joseph Michael Kanan v Australian Postal and Telecommunications Union 28 where His Honour stated:

“[29] It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where it appears that, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”

[55] As was evidenced in the proceedings, both parties accepted that when the applications were made the respondents were members of the management committee, and that it wasn’t until (on the applicant’s submissions) the 10 August 2015, Annual General Meeting that the respondents’ status as members of the management committee ceased.

[56] In my view, it was entirely appropriate that the applicants discontinued their applications having advised the Commission on 20 August 2015, that the respondents were no longer on the management committee and did not have cause to come into contact with the applicants. Both applicants confirmed at the costs hearing that they no longer have contact with the respondents, other than the ‘23 emails’ Ms Woods stated she had received from Mr Churches regarding his costs application.

[57] It cannot be seriously advanced by the respondents that the applicants’ discontinuance of their applications on 20 August 2015, due to the altered status of the respondents meant that the applications were filed without reasonable cause some five months earlier or that it should have been reasonably apparent that the applications had no reasonable prospects of success. Their argument has even less weight based on the respondents maintaining that they continue to be members of the management committee.

[58] Although the merits of the applications were not finally determined, the applicants have demonstrated to my satisfaction that the applications were made with reasonable cause and that it was not reasonably apparent that that they had no reasonable prospect of success.

[59] This then leaves the question of whether the applications were filed vexatiously.

[60] The approach generally taken by this Commission as to the meaning of vexatious in s.611(2)(a) is that advocated by Justice North in Nilsen v Loyal Orange Trust. 29 Although the comments related to the Workplace Relations Act 1996, the relevant provision was in terms similar to s.611(2)(a) being whether an applicant “instituted the proceeding vexatiously or without reasonable cause”. His Honour said:

“The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage : see Attorney General v Wentworth (1988) 14 NSWLR 481 at 491. The approach of the High Court in an application for a permanent stay of criminal proceedings on the ground of abuse of process constituted by improper purpose is instructive. In Williams v Spautz [1992] HCA 34, (1992) 174 CLR 509,at 522, Mason CJ, Dawson, Toohey and McHugh JJ said:

“Bridge LJ identified one difficulty when he said ([1977] 1 WLR, at p 503; [1977] 2 All ER, at p 586):

‘What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired byproduct of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it.’ (Emphasis added.)

So would we. But his Lordship, by implication, evidently sees no difficulty with the case in which the plaintiff does not wish to pursue his or her cause of action to a conclusion because he or she intends to use the proceedings for a collateral and improper purpose.””

[61] The evidence of both applicants was illustrative of a strong belief that their applications were genuine and filed as a last resort to resolve what they perceived as bullying by the respondents. Cross examination of the applicants by Mr Churches did not detract from the applicants’ stated position.

[62] The question of whether or not Ms Woods and Mr Jackson had been bullied at work was not determined by the Commission. However, given the submissions of the applicants in these proceedings about the originating applications, the applicants had justification to submit an application to the Commission.

[63] Both Ms Woods and Mr Jackson submit that they felt ‘intimated’ by the behaviour of the respondents at their workplace, and in the words of Ms Woods “at the time nothing was there to protect me as a worker of the Collie Chamber of Commerce, 3 of my employers were allowed to enter my place of work and give me an ultimatum…”  30 The employer response (F73) which was filed by the President of the Collie Chamber at the time, also acknowledged the bullying behaviour alleged in the applications.

[64] The evidence generally presented by the all the witnesses painted a picture that in recent times there was a dysfunctional management committee racked with division and attempts by various interest groups to gain control. The approaching of administration staff by members of the management committee; whether well intentioned or otherwise is not a prudent practice and appears to have led in part at least to Ms Woods’ application.

[65] I am not satisfied that the applications were made vexatiously in the sense they were motivated by the predominant purpose of harassing or embarrassing the respondents or to gain a collateral advantage.

[66] I am further not satisfied the applications were made without reasonable cause or that it should have been apparent to the applicants that their applications had no reasonable prospects of success.

[67] While it is clear that the respondents; on their own evidence were aggrieved by the allegations and believe they have been shamed in the eyes of some in the Collie community, there has been no finding made against them and the applications remain as allegations no longer proceeded with.

[68] As the respondents have not satisfied the Commission of the requirements imposed by the matters in s.611(2)(a) or (b), the discretion to make an order for costs is not enlivened and the costs application must be dismissed.

[69] The respondents’ application for costs is accordingly dismissed.

DEPUTY PRESIDENT

Appearances

Ms R Woods on her own behalf

Mr R Jackson on his own behalf

Mr D Churches on behalf of the respondents

Hearing details

Collie

2015

13 November

 1   Accepting the applicants’ position results in there being no appearance by the Chamber as the employer at the hearing

 2   PN18

 3   See PN596 for grant of leave to appear

 4   See s.789FD(3) of the Act

 5   See PN85 to PN109

 6   A copy of the Chamber’s Constitution provided by Mr Churches on 17 November 2015 refers to a management ‘council’

 7   3.2 of the submitted Application for Costs (F6)

 8   S.400A applies to matters arising under Part 3-2 Unfair Dismissals of the Act. Arguably this should have been reasonably apparent to the respondents

 9   3.3(f) of the Application for costs

 10   Ibid at 3.3(e) to 3.3(g)

 11   [2014] FWC 5588. This matter also arose out of a bullying application

 12   Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 409 per Mason CJ and Brennan, Deane, Dawson and McHugh JJ

 13   Mr Richard Jackson’s submissions in reply dated 21 October 2015

 14   Mr Jackson’s submissions dated 23 September 2015

 15   See Mr Yates’ witness statement Exhibit A4

 16 S.402

 17   See S&L Kurc Nominees Pty Ltd as trustees for the Kurc Family Trust trading as Riot Art and Craft v Saddington (PR966909)

 18   See [2011] FWA 2225 at [74]

 19 [2000] 203 CLR 194 at p204 per Gleeson CJ, Gaudron and Hayne JJ

 20   [2011] FWAFB 4014

 21   Wodonga Rural City Council v Lewis, PR956243, at para 6

 22   Deane v Paper Australia Pty Ltd, PR932454, at paras 7 and 8.

 23   A Smith v Barwon Region Water Authority, [2009] AIRCFB 769, at para 48

 24   Keep v PerformanceAutomobiles Pty Ltd [2015] FWCFB 1956

 25   PR932454

 26   Ibid at [8], also see Baker v Salva Resources Pty Ltd[2011] FWAFB 4014 at [10]; and Metecno Pty Ltd T/A Bondor v Cameron[2014] FWCFB 2128 at [16]

 27   Qantas Airways Ltd v Carter[2013] FWCFB 1811

 28 [1992] FCA 366, 43 IR 257

 29 [1997] 76 IR 180 at page 181

 30   Ms Woods’ submissions dated 21 September 2015

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